Delhi District Court
State vs . 1. Ami Chand on 28 September, 2011
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS
JUDGEII (NORTHWEST): ROHINI COURTS: DELHI
Sessions Case No. 1236/2010
Unique Case ID: 02404R0014392009
State Vs. 1. Ami Chand
S/o Badle
R/o Village Garhi Patti,
Distt. Palwal, Haryana.
(Acquitted)
2. Sushil
S/o Rai Singh
R/o VPO Kheri Jashor
PS Bahadurgarh,
Distt.: Jhajjar, Haryana.
Also: Village Joti, Delhi.
(Acquitted)
3. Rajender @ Fauji (PO)
S/o Buddhi
R/o Village Garhi Patti, PS Hodal
Distt. Palwal, Haryana.
(Proclaimed Offender)
FIR No. : 138/2008
Under Section : 376 (2) G/506/328/365/34 IPC
Police Station : Kanjhawala
Date of committal to Sessions court : 20.1.2009
Judgment reserved on : 21.9.2011
Judgment pronounced on : 28.9.2011
State Vs. Ami Chand etc., FIR No. 138/08, PS Kanjhawla Page 1 of 62
JUDGMENT
Brief Facts:
As per the allegations on 14.9.2008 at about 12 O'Clock during day time in the area of Bus Stand Kanjhawla, the accused Ami Chand, Sushil and Rajender (since proclaimed offender) in furtherance of their common intention forcibly administered certain an unknown poison or some stupefying intoxicating or wholesome drug to the complainant / prosecutrix 'G' (name of the prosecutrix has been withheld as this is the case under Section 376 (2) (g) IPC) and abducted and thereafter on 15.9.2006, in the area of Gandhi Patti, Hodal, Haryana, all three accused have forcibly committed gang rape turn by turn upon the prosecutrix 'G' and thereafter threatened her to kill her.
Case of prosecution in brief:
As per the case of the prosecution, on 20.09.2008 the prosecutrix 'G' came at Police Station and gave her statement to the police wherein she has stated that on 14.9.2008 she went to Kanjhawla to bring ration and at about 12 O'clock she reached at Kanjhawala Bus Stand, when the accused Sushil came there in a car along with Rajender and one other person who was driving the vehicle and suddenly Sushil caught hold of her and pulled her inside the car and drove the car. She further told the police that accused State Vs. Ami Chand etc., FIR No. 138/08, PS Kanjhawla Page 2 of 62 Sushil made her to drink water forcibly as a result of which she became unconscious. According to her, on 15.9.2008 at 1:30 (night) when she regained her consciousness, she found herself in a room and Sushil and Rajender were also present when Sushil threatened her to do whatever they say or else they would finish her and thereafter Sushil and Rajender committed rape upon her. She further told the police that on 15.9.2008 at 10 AM she came out of the room and tried to run away but Ami Chand and other two persons stopped her on which she raised an alarm after which public persons gathered there and in the meantime a person came there on motorcycle who told that police was coming on which the public disrupted and thereafter the person on motorcycle told her that it was village Gaddi and he took her to his house where she stayed till 17.9.2008 and in the evening she came back to her house. She has further informed the police that she used to work at the house of Sushil and Rajender and Ami Chand used to visit the house of Sushil.
ASI Jor Singh prepared the rukka and got the case registered. During investigations, accused Ami Chand was arrested from Village Gari Patti, Distt. Hodal, Haryana and efforts were made to trace the accused Rajender but he could not be traced and therefore the charge sheet was filed against accused Ami Chand. Thereafter, the accused Sushil surrendered before the court and was formally arrested.
State Vs. Ami Chand etc., FIR No. 138/08, PS Kanjhawla Page 3 of 62 CHARGE:
Charges under Section 328/365/376 (2) (g)/506 read with Section 34 Indian Penal Code were settled against the accused Ami Chand and Sushil (coaccused Rajender is PO) to which they pleaded not guilty and claim trial.
EVIDENCE:
In order to discharge the onus upon it, the prosecution has examined as many as twenty two witnesses.
Public Witnesses:
PW1 is the prosecutrix 'G' who has has deposed that about 1½ years prior to the date of incident she was working as a maid in the house of Sushil and she was residing near the house of Sushil. According to her, Poonam wife of Sushil became friendly with her and started visiting her house and prior to the day of Raksha Bandhan, in the same year in which this present incident took place, Poonam on the pretext taking her to her parents place took her to some other place in Hodal where Poonam introduced her to one Ami Chand and told her that she should marry Ami Chand. She has further deposed that she does not agree but she was married to Ami Chand forcibly and Ami Chand kept her in a locked house for 19 days then after 19 days, one day she fled away from there on the State Vs. Ami Chand etc., FIR No. 138/08, PS Kanjhawla Page 4 of 62 pretext of going to attend a natural call and from Hodal, she came back to Delhi and went to her home. According to her for few days she remained confined in her house in Delhi and on 14.08.08 her husband gave her some money to bring ration, when she went to Kanjhawala by bus and when she got down at Kanjhawala bus stand and was proceeding towards ration shop Sushil caught hold of her and pulled her in a car. She has further deposed that one person namely Rajinder was also sitting inside the car and the third person whose name she does not know drove away the car and Sushil made her drink some stupefying substance as a result of which she became unconscious. According to her around 11.30 am, she regained her consciousness and found herself in the same house at Hudal where she was earlier kept by Ami Chand and in the same night, she was raped by Sushil, Rajinder, Satto, Banso, Khemchand and Ami Chand and one lady namely Dulari Bhabi of Ami Chand was also present in the said house when she was raped by these persons then somehow she managed to slip from the house in the morning and met a person on a motor cycle who told her that police was coming after which she sat on his motor cycle and he brought her to Delhi at her house. The witness thereafter again stated that motor cycle person left her at Hodal railway station from there she came to Delhi and she had reported the matter to the police after that police recorded her statement Ex.PW1/A and she was got medically examined at SGM State Vs. Ami Chand etc., FIR No. 138/08, PS Kanjhawla Page 5 of 62 Hospital, Mangol Puri and later at her instance the police arrested accused Ami Chand from Hodal vide arrest memo Ex.PW1/B. She has further deposed that she had pointed out the place of incident to the police and they prepared a site plan mark X. She has further deposed that she had recollect that when she was taken to Hodal and was locked in a room, her mobile phone and Rs. 2000/ which she was carrying to buy ration, were snatched by Satto, Dulari and Khemchand. Witness has also correctly identified the accused Ami Chand and Sushil in the court and her clothes i.e. her salwar which were taken by doctor in SGM Hospital. Same is Ex. P1.
Leading questions were put to her by Ld. Addl. PP wherein the prosecutrix has admitted that the date of incident was 14.09.08 and not 14.08.08 as stated by her above.
During her cross examination by Ld. Defence counsel for accused Ami Chand witness has deposed that she was working in the house of Sushil as a maid for about one and a half years and she had left the work from the house of Sushil one month prior to the incident. According to her she was got married with accused Ami Chand one month prior to the incident and during this one and half years, accused Sushil never teased or raped her and had also not done any wrong act with her. According to the witness, she had not lost her consciousness after being raped by the above said persons and she has admitted that she came back to Delhi on 15.09.08 by train. State Vs. Ami Chand etc., FIR No. 138/08, PS Kanjhawla Page 6 of 62 She has further deposed that she went to police station around 12.00 noon on 15.09.08 where her husband had already reached and she had lodged a complaint regarding the incident when she had told the police that Smt. Poonam wife of Sushil had got her married with accused Ami Chand forcibly. When confronted with her statement Ex. PW1/A this fact was not found so recorded. She has further deposed that she had also stated to the police that she remained for 19 days with accused Ami Chand and he had kept her in a locked room but on confrontation with her statement Ex.PW1/A it was not found so recorded. According to her on the same day i.e. 15.09.08, she had also stated to the police that Satto, Banso, Khemchand and Ami Chand had also raped with her. However, on confrontation with her statement Ex.PW1/A it was not found so recorded. She has further deposed that the accused Sushil, Rajinder, Satto, Banso, Khemchand and Smt. Dulari had beaten her badly with laathi and fist at that time, but the accused Ami Chand was not inside the room and he had not beaten her but she did not count how many time she was given laathi blow by the accused but states that many laathi blow were given to her. According to her Blood came out from her head and mouth and she had also received many marks of injuries on her body and that she had shown all the injuries to the police persons as well as to the doctor where she was got medically examined. She has further deposed that no bleeding occurred from her private part and after State Vs. Ami Chand etc., FIR No. 138/08, PS Kanjhawla Page 7 of 62 giving beatings to her all the accused persons came out from the room and she also came out from the room alongwith accused persons. According to her when she regained consciousness in the room, Satto, Banso, Khemchand, Dulari, Rajinder and Sushil were present. Witness has stated that they had closed the room from inside. She has further deposed that when she was raped, she had raised lot of hue and cry and noise but it was a lonely place and no one could hear voice and at that time when she was being raped, Dulari remained present. According to the witness, she came out from the room on the pretext of passing urine when all the persons already present in the room also came out from the room behind her and the room was opened for the first time at around 10.00 am when she came out for passing urine after it was closed at night.
She has further deposed that when she had gone with Poonam she had not informed her husband as she thought that she would come back early but states that her husband knew that she had gone with Poonam. According to her earlier accused Sushil was a driver on a private tempo and the accused Sushil was also called by the name of Fauzi as he is an exarmy man. She has further deposed that she was having the a mobile phone for the last about 23 years prior to the incident and when she was got married with accused Ami Chand forcibly, which mobile was with her and states that her husband was also having a separate mobile phone. According to the State Vs. Ami Chand etc., FIR No. 138/08, PS Kanjhawla Page 8 of 62 witness, she was unable to inform her husband regarding her forcible marriage with accused Ami Chand as all the persons were surrounding her every time and she was having no occasion to inform her husband and the said persons namely Satto, Bansoo and Khemchand who used to sit in the house of Ami Chand were not related with accused Ami Chand. She has further deposed that during her captive stay for 19 days, nobody gave any beatings to her and none asked her to preform any household or other work of outside the house i.e. of field etc. According to her she does not remember exactly as to how many days prior to Raksha Bandhan, she was taken to Hodal but has added that it was 5 days prior to the Raksha Bandhan when she escaped from Hodal. She has further deposed that she does not remember the exact time when she had telephonically called her husband on 15.09.08 from a STD booth of Hodal and states that the police had recorded her statement only once on 15.09.08 and never again. According to her thereafter on second or third day, one lady namely Anuradha called her at the police station whose designation she was not aware of and she had handed over her written statement to her as the police was not investigating her case and thereafter her statement was never recorded by the police during investigation. She has further deposed that she had stated to the police that she was abducted from Khajhawala chowk on 14.09.08 and she had not stated that she was abducted from Bus State Vs. Ami Chand etc., FIR No. 138/08, PS Kanjhawla Page 9 of 62 Stand Kanjhawala and has voluntarily added that the ration shop is just adjacent to bus stand Kanjhawala/Kanjhawala Chowk. She has further stated that she had told the police in her statement dt. 15.09.08 that she was forcibly married with accused Ami Chand and also confined for 19 days but when confronted with statement of witness Ex. PW1/A this fact was not found recorded. Witness was also confronted with her supplementary statement recorded u/s 161 Cr.P.C dt. 21.09.08 where the said period of confinement was mentioned as 2728 days. According to the witness she had not told her husband this fact of Ami Chand keeping her in captivity and of her forcible marriage with accused Ami Chand initially because of the fear of beatings from her husband and only told him that she had gone to the house of her sister.
She has further deposed that she had told the name of her sister as Geeta residing at Bawana to her husband and her husband did not initially get any information registered in any police station regarding her said missing from her house but had only lodged a complaint/missing report regarding her missing in the evening of 14.09.08 at PS Kanjhawala. According to the witness she had seen accused Ami Chand for the first time when she was got forcibly married with him and during her initial captive stay at the house of accused Ami Chand, 45 family members of accused Ami Chand used to remain with her in the said room, in which she was kept, 24 State Vs. Ami Chand etc., FIR No. 138/08, PS Kanjhawla Page 10 of 62 hours. She has further deposed that she had not stated to the police in her statement that she was got forcibly married with accused Ami Chand about 23 month prior to 14.09.08, but later again clarified that she had stated so to the police. Witness has denied the suggestion that she was deposing falsely. Witness has denied the suggestion that she had concealed the fact regarding her previous marriage with Manoj from accused Ami Chand. Witness has denied the suggestion that she had married the accused Ami Chand with her free will. Witness has denied the suggestion that no such incident as of 14.09.08 had taken place with her. Witness has denied the suggestion that accused Ami Chand never raped her. Witness has denied the suggestion that during the investigations when the fact regarding her marriage with accused Ami Chand had emerged, she then improve in her statement recorded u/s 161 Cr.P.C. that her said marriage was got conducted forcibly. Witness has denied the suggestion that when the factum of her earlier marriage with Manoj came to the knowledge of accused Ami Chand, he had an alteration with her after which she ran away from his house with some money and jewelery or that when accused demanded the said cash and jewelery back then she got the present case FIR registered.
The prosecutrix (PW1) was recalled for further examination pursuant to filing of the supplementary charge sheet against the accused Sushil wherein she has adopted her earlier State Vs. Ami Chand etc., FIR No. 138/08, PS Kanjhawla Page 11 of 62 deposition/ testimony made before this court on 18.12.09.
During her further cross examination by Ld. Counsel for the accused Sushil witness has deposed that she had stated the fact to the police that she had worked in the house of accused Sushil as Maid for about one and a half year prior to the incident but when confronted with the statement Ex.PW1/A this fact was not found recorded. According to the witness, she had also told the police that she was residing near the house of accused Sushil and that his wife Poonam became friendly with her and started visiting her house in the same prior to the occurrence in the same year and she had also told the police that prior to the day of Raksha Bandhan in the same year when the incident took place, Poonam on the pretext of taking her to her parents place took her to some other place at Hodal, she had further told the police that Poonam introduced her to a person namely Ami Chand and told her to marry Ami Chand to which she did not agree but she was married to Ami Chand forcibly when confronted with her statement Ex.PW1/A all the above facts were not found mentioned. She has further deposed that she had told the police that on the pretext of going to attend the natural call she fled from the house of Ami Chand, she had further told the police that from Hodal she came back to Delhi and went to her home and remained confined in her house in Delhi for few days but when confronted with the statement Ex.PW1/A where these facts were not State Vs. Ami Chand etc., FIR No. 138/08, PS Kanjhawla Page 12 of 62 found mentioned.
Witness has admitted that there are many shops of ration in village Jonti and Kanjhawala is situated about 10 minutes drive away from Village Jonti and states that she had told the police that she went to Kanjhawala by bus. However, when confronted with the statement Ex.PW1/A this fact was not found mentioned. She has further deposed that she reached at Kanjhawala at about 12.00 noon and she used to take ration from Qutub Garh, Kanjhawala and weekly markets i.e. Budh Bazaar and Itwaar Bazzar and she was holding a plastic katta (bag) and a hand purse having Rs.1000/ in it and she was also having one mobile whose number she did not remember and has voluntarily added that she was not having the said mobile as the said mobile phone was taken away by accused Sushil. According to the witness she does not remember whether she was having Rs. 1000/ or Rs. 2000/ and she had told this fact to the police that she was having her mobile phone and Rs.2000/, a plastic bag and hand purse however when confronted with her statement Ex.PW1/A this fact was not been mentioned. Witness has admitted that she had stated in her statement earlier that Satto, Dulari and Khem Chand had snatched her mobile phone and Rs.2000/ and has voluntarily added that it was the other mobile which was snatched but when confronted with the statement Ex.PW1/A this fact was not found mentioned. She has further deposed that she does not State Vs. Ami Chand etc., FIR No. 138/08, PS Kanjhawla Page 13 of 62 remember the number of the said mobile phone (snatched Satto, Dulari and Khem Chand) and states that she had told the number of the said mobile to the police in her statement but when confronted with the statement Ex.PW1/A this fact was not mentioned. According to the witness, the another mobile was snatched by the accused Sushil at Kanjhawala and she told the same facts to the police regarding the snatching of her mobile by accused Sushil at Kanjhawala but when confronted with the statement Ex.PW1/A this fact was not found mentioned. She has further deposed that she can read Hindi and numbers and states that she is otherwise illiterate not having studied in any school and has voluntarily added that her brother had taught her Hindi.
She has further deposed that she is having three children and their names are Deepak, Roshan and Rakesh and her son Deepak is aged about 14 years and is already married but Gauna of his wife is yet to take place. She is unable to tell when she got married. She has admitted that Manoj is her second husband and she does not remember the age when she was first married and states that her second marriage was about 15 years ago and has explained that her first husband is living in the village but she does not know the name of his village. She has further deposed that she has not got a divorce from her first husband. According to her, she had told this fact that she somehow she managed to slip from the house of Ami Chand in State Vs. Ami Chand etc., FIR No. 138/08, PS Kanjhawla Page 14 of 62 the morning and met a person on a motorcycle who told her that police was coming but when confronted with the statement Ex.PW1/A this fact was not found mentioned. She has further deposed that she cannot tell the name of the motorcycle rider since she did not know him and states that she had made a complaint to the police immediately on reaching Delhi i.e. on 15.09.08 at about 2.003.00 pm. However, when confronted with the statement Ex.PW1/A this fact was not found mentioned. According to the witness, she used to work as a laborer in farms and she did not see the number of the motorcycle on which she came and she cannot tell its particulars. She has further deposed that she cannot tell the number of the car in which she was abducted or its particulars except that it had tinted glasses and was of black colour but she had raised an alarm. According to her she was abducted from Kanjhawala Chowk. She admits that there are many shops at Kanjhawala Chowk which place is frequented by public. She has further deposed that after getting her complaint registered she came back to her house but she does not remember the date of her medical examination. According to her she does not know any Amarjeet of Village Nangal and she also did not know any Raja but she know Shanti, Shanti is the Bhabhi of Ami Chand who had indulged into Maar Pitai with her. She has further deposed that she had received injuries during the beating since she was badly beaten by many persons and she was State Vs. Ami Chand etc., FIR No. 138/08, PS Kanjhawla Page 15 of 62 taken to the hospital by police after one or two days but her husband was not with her when she was taken to the hospital and when she went to the police station her husband accompanied her. According to her, she did not have any sexual intercourse with her husband during the time she had stayed home after the incident and states that she had disclosed about the incident to her husband on telephone when she telephoned her husband after she got down at Delhi. She has further deposed that her husband had the same telephone number at the time when she called him which he is having today which number is 9654107980. She does not recollect how money she had paid for ticket from Hodal to Delhi and according to her, she had boarded the train at about 10.00 AM and borrowed the money from the person on whose motorcycle she came i.e. Rs. 50/ from him. She has further deposed that she had got down at New Delhi Railway Station from where she took a cycle rickshaw and came to Peeli Kothi by paying Rs. 10/ and from Peeli Kothi she took bus number 114 and got down at Kanjhawala from where she came home and in bus she spent Rs. 15/ as fare but she does not recollect if any money was left with her thereafter. According to her she had told the police the details of how she came to Delhi i.e. by train and thereafter by rickshaw and bus but she does not know if the IO recorded the same in her statement. Police only recorded her statement once. State Vs. Ami Chand etc., FIR No. 138/08, PS Kanjhawla Page 16 of 62
Witness has denied the suggestion that she had falsely implicated Sushil and deceased Rajender since Rajender was on duty at that time. Witness has denied the suggestion that whatever she had stated in the court is an after thought and she had concocted the entire story. Witness has denied the suggestion that Sushil has no connection with alleged incident and the offence only to save herself from the allegations of being married to Ami Chand and running away from his house by stealing his money and jewelery. Witness has denied the suggestion that she was indulging into his business of inducing persons into marriage and robbing them of their valuables and money. Witness has denied the suggestion that Sushil and Rajender were in territorial army and Ami Chand alongwith Rajender had come to her village looking for her where the accused Sushil is also residing and Sushil also being in the territorial army with Rajender had helped Rajender in identifying her and had informed them that she was already married and was having children. She has further deposed that she cannot tell the date but she had not visited the site after making of the complaint.
PW8 Manoj, has deposed that on 14/09/08, he used to reside along with family at House of Hukme Master at Village Jonti and on that day her wife had gone to purchase grocery items (ration) in the morning hours but she did not come back till evening thereafter he searched her wife / prosecutrix in all her relations but State Vs. Ami Chand etc., FIR No. 138/08, PS Kanjhawla Page 17 of 62 there was no clue of her as such he came back to his rented house of Jonti and found her wife there. According to him, her wife disclosed her about the incident which had taken place with her thereafter he along with her reached at PS and got the present FIR recorded, on the statement of his wife / prosecutrix after which the IO also recorded his statement. In his cross examination by Ld. Defence counsel witness has deposed that he was married with prosecutrix about 15 years ago and she was already having one baby at the time of marriage with him. Witness again said the baby was born after marriage with him and at the time of marriage she was not having any baby as she was unmarried. According to him at the time of his marriage with prosecutrix he was already married with Kusuma and she also resides with him and it was the duty of prosecutrix to purchase ration. He has further deposed that Kanjhawala Chowk was at the distance of about 34 km from his tenanted house at village Jonti but he does not know from where she used to purchase the ration. Witness has admitted that there are some ration shops near his rented house but states that they used to sell the goods at higher price and therefore the prosecutrix used to buy from shops which sell at a cheaper rate. He has further deposed that he had never purchased ration but he knew that in the nearby shop ration was costlier. According to the witness, he had started searching her wife from next day morning but he does not know the exact time when she left the State Vs. Ami Chand etc., FIR No. 138/08, PS Kanjhawla Page 18 of 62 house for purchasing ration as he was at his work place at that time. He has stated that, he had given rupees 1200/ to his wife for purchase of ration and till the arrival of his wife at his home he did not lodge any missing report with any PS. He has further deposed that on 16/09/08 his wife came back to his house and after searching his wife on 15/09/08 he came back to his house in the evening but on the next day he went on his work. He is unable to tell the exact time of arrival of his wife on 16/09/08 but states that when he came at his house at 1.00 pm for lunch, he found her (prosecutrix) at home and he reported the matter to Police on same day i.e. 16/09/08 and on the same day her statement was also recorded. He has further deposed that prosecutrix was not medically examined on 16/09/08. According to him, the prosecutrix had never left the house earlier without informing him but he did not tell police official that earlier also his wife had left for a month without informing him and came back. However, when confronted with statement Ex.DA/1 this fact was so found recorded. Witness has denied the suggestion that he was deposing falsely or that his no statement was recorded by the Police or that he does not give any statement to the police. Medical Evidence:
PW2 Dr. Shankar Gupta has deposed that on 02/10/08, she was posted at SGM Hospital as CMO and on that day, he had State Vs. Ami Chand etc., FIR No. 138/08, PS Kanjhawla Page 19 of 62 medically examined accused Ami Chand, 45 years male, brought by Constable Satish Kumar vide MLC Ex. PW2/A signed by him at point 'A'. After his medical examination, he was of the view that there was nothing to suggest that the accused Ami Chand was incapable of doing sexual act. His blood sample was collected and handed over in sealed condition to Constable Satish.
PW6 Dr. Sangeeta Kumari, has deposed that she had been deputed by MS, SGM Hospital in place of Dr. Garima Trivedi as she had left the Hospital and her present whereabouts are not known and she had seen MLC No. 11740 and on the said MLC, the noting of Dr. Garima Trivedi regarding Gynecological Examination of prosecutrix are encircled at point 'A'. As per MLC, her undergarments and high vaginal swab was taken and sealed. The MLC is Ex.PW6/A. During her cross examination witness has deposed that Dr. Garima Trivedi left the hospital in the year, 2009 but the month she does not remember and she was working at SGM Hospital since, 2007. According to her, the prosecutrix was not examined in her presence and it has been mentioned in the MLC that no sign of external injury seen, No internal injuries are mentioned in the said MLC. Witness has denied the suggestion that she had never worked with Dr. Garima Trivedi or that she cannot identify her signature and handwriting or that she was deposing falsely. State Vs. Ami Chand etc., FIR No. 138/08, PS Kanjhawla Page 20 of 62
PW7 Dr. Binay Kumar, has deposed that on 18/09/08, he was posted at SGM Hospital as Casualty Medical Officer and on that day, at about 12.40 p.m., he medically examined one prosecutrix W/o Manoj, aged about 26 years female, brought by Lady Constable Raj Bala with alleged history of sexual assault (victim) and after her general examination, she was referred to SR Gynae for her Gynecological Examination. Her MLC already exhibited as Ex.PW6/A. PW12 Dr. N. K. Singh has deposed that on 28.06.2010 he was working as CMO at BSA hospital, Rohini and on that day he had examined the patient Susheel S/o Sh. Rai Singh aged about 40 years male brought for medical examination and blood sample collection vide MLC Ex.PW12/A and the blood sample was taken in gauze piece,vial sealed and handed over to the IO. Police / Official Witnesses:
PW3 W/Constable Rajbala has deposed that on 18/09/08, she was posted at PS Kanjhawala as Constable and on that day, as per the instructions of the IO, she got the prosecutrix W/o Manoj medically examined at SGM Hospital and after her medical examination, Doctor handed over her two pullindas in sealed condition along with one sample seal thereafter she handed over the same to the IO and the same were taken in Police possession vide State Vs. Ami Chand etc., FIR No. 138/08, PS Kanjhawla Page 21 of 62 seizure memo Ex. PW3/A. During her cross examination by Ld. Defence counsel witness has deposed that she does not know whether the FIR of the present case was registered or not when she had taken the prosecutrix for her medical examination. According to her statement of prosecutrix was not recorded in her presence, neither she had asked nor she told her anything about the incident. Witness has denied the suggestion that she was deposing falsely.
PW4 Constable Joginder Singh, has deposed that on 20/09/08, he was posted at PS Kanjhawala as Constable and on that day, Duty Officer handed over him the copy of FIR and the original Tehrir of the present case at about 9.30 or 9.45 a.m. then he took the same and handed over to the IO at Kanjhawala Chowk and IO recorded his statement. During his cross examination by Ld. Defence counsel witness has deposed that the FIR was not recorded in his presence and he does not see prosecutrix at Police Station on that day. Witness has denied the suggestion that she was deposing falsely.
PW4 Constable Joginder Singh has been recalled after filing of supplementary charges against accused Sushil and he has deposed that he had adopted his earlier examination conducted on 30.04.10 and further stated that 21.11.08 the then MHC (M) HC Surender handed over to him three sealed parcels containing exhibits of prosecutrix , under garments and blood sample of accused along State Vs. Ami Chand etc., FIR No. 138/08, PS Kanjhawla Page 22 of 62 with two sample seals duly sealed with the seal of SGMH, NCT Delhi then he took the same to CFSL, Kolkata vide RC No. 78/21/08 and he got deposited the same in the CFSL Office Kolkata and he did not tamper with the exhibits during the period same remained in his custody. In his cross examination by Ld. Defence counsel witness has deposed that he adopt the earlier crossexamination conducted on 30.04.2010 on behalf of accused Ami Chand. Witness has admitted that FIR was not lodged in his presence but copy of the same was handed over to him by the Duty Officer after lodging the same.
Witness has admitted that no investigation was conducted in his presence.
PW5 Constable Satish has deposed that on 02/10/08 he was posted at PS Kanjhawala as Constable and on that day, he joined the investigation of the present case along with W/ASI Rani Jassal. According to him on that day, he along with HC Om Prakash, ASI Jor Singh, prosecutrix and W/ASI Ram Jassal reached at Village Gadi Patti, Hodal, Haryana where on the pointing out of prosecutrix, the accused Ami Chand was arrested and his personal search was conducted vide memos Ex.PW1/B and Ex.PW5/A which bears his signatures at point 'B'. He has further deposed that Ami Chand was taken to Delhi and was medically examined at SGM Hospital and after his medical examination, the Doctor handed over the blood sample in sealed condition along with sample seal to the IO which State Vs. Ami Chand etc., FIR No. 138/08, PS Kanjhawla Page 23 of 62 were taken in Police possession vide seizure memo Ex. PW5/B. In his cross examination by Ld. Defence counsel witness has deposed that the village Gadi Patti is in the West direction from Hodal and the accused was apprehended from his Gher but the main door of the said Gher is in South direction. According to him the accused was apprehended in the evening hours i.e. at about 4.00pm and after his arrest, first the information regarding his arrest was given at PS Hodal and then they came back to Delhi and prior to reaching village Gadi Patti they made arrival entry at PS Hodal and one Constable of the Local Police accompanied them to village Gadi Patti but the said fact was not mentioned in his statement recorded u/s 161 Cr.P.C. He has further deposed that at Delhi, they directly reached to SGM Hospital thereafter they reached at PS Kanjhawala and after reaching the Police Station, IO prepared arrest memo and personal search memo and his statement was recorded on the next day. Witness has denied the suggestion that he never visited village Gadi Patti and the accused Ami Chand was not arrested in his presence. He has further deposed that he cannot tell the number of vehicle by which we had gone to village Gadi Paati. Witness has denied the suggestion that he was deposing falsely.
PW9 HC Naresh has deposed that on 20.09.08 he was posted at PS Kanjhawala and on that day he was working as duty officer from 08:00 am to 04:00 pm. According to him at about 09:55 State Vs. Ami Chand etc., FIR No. 138/08, PS Kanjhawla Page 24 of 62 am ASI Jor Singh arrived at the DO room and handed over him a rukka and on the basis of the said rukka he got the present FIR recorded through Computer Operator, which copy of the FIR is Ex.PW9/A after which he made his endorsement on the rukka, which is Ex.PW9/B and after registration of the FIR he handed over copy of FIR and original rukka to CT Joginder to hand over the same to ASI Jor Singh. He has produced the original FIR register in the court. He has further deposed that on 18/09/08 he was working as MHC(M) PS Kanjhawala and on that day ASI Jor Singh deposited two pullandas sealed with the seal of SGM Hospital along with one sample seal in the maalkhana vide Entry NO. 1608 in Register No.
19. Copy of Register No. 19 is Ex.PW9/C and other articles in the present case were deposited during the tenure of MHC(M) / HC Surender and were sent to FSL during his tenure.
PW10 W/ASI Rani Jassal has deposed that on 02.10.2008 she was posted at DCP Office Outer District as ASI and on that day as per the instructions of the then DCP Outer district she reached at PS Kanjhawala and SHO PS Kanjhawala marked her the present case file for further investigations. She has further deposed that on the same day she along with ASI Jor Singh,HC Om Prakash, Ct. Satish and complainant / prosecutrix left PS Kanjhawla and reached village Garipatti district Hodal, Haryana and from there the accused Ami Chand (correctly identified by the witness) was arrested State Vs. Ami Chand etc., FIR No. 138/08, PS Kanjhawla Page 25 of 62 at the instance of complainant / prosecutrix vide arrest memo Ex.PW1/B and his personal search was conducted vide memo Ex.PW5/A. According to her accused Ami Chand produced two photographs depicting Ami Chand and prosecutrix putting Garlands to each other and same were taken in police possession vide seizure memo Ex.PW10/A. She has further deposed that regarding their said visit an entry was made at PS Hodal and they all along with accused came back to Delhi and she got accused Ami Chand medically examined at SGM hospital through Ct. Satish Kumar and after his medical examination doctor handed over her one pullanda containing blood sample of accused in sealed condition along with one sample seal of SGM hospital after that same were taken in police possession vide seizure memo Ex.PW5/B and thereafter accused was put into the lockup and next day he was produced before the court. She has further deposed that on 07.10.2008 she along with staff reached at Village Jonti in search of accused Sushil Fauzi but his house was found locked. According to her on 10.10.2008 the case file was marked to Insp. Harish Chand as such she handed over the case file to MHC (R) PS Kanjhawala.
During her cross examination by Ld. Defence counsel witness has deposed that accused was arrested at 8 PM from his house at village Garipatti and no site plan of the place of arrest was prepared. According to her, the main door of the house of accused State Vs. Ami Chand etc., FIR No. 138/08, PS Kanjhawla Page 26 of 62 was in south direction and there were two or three room in the house of accused and his some other relatives were also present. She has further deposed that she did not inform the family members of the accused Ami Chand regarding his arrest present at the place of arrest and she could not tell the name of the relatives of the accused present there. She has further deposed that the house of accused was in the back of PS Hodal but she could tell the directions. According to her the photographs already available in the file were given by the accused himself at the time he was arrested and same are Ex.PW10/D1 and Ex.PW10/D2. She has further deposed that she cannot tell the exact distance from Delhi to Hodal and they went by Qualis but she does not remember its registration number. According to her, she had recorded the statements of witnesses U/S161 Cr. P.C. On 03.10.2008. Witness has denied the suggestion that she was deposing falsely or that accused was not arrested by her PW 11 ASI Jor Singh has deposed that on 18.09.2008 he was posted at PS Kanjhawala as ASI and on that day he was present at the police station when the complainant / prosecutrix arrived there, thereafter as per the instructions of SHO as requested by prosecutrix he got her medically examined at SGM hospital through L/Ct. Raj Bala and he also accompanied her to SGM hospital and after her medical examination doctor handed over him two pullandas sealed with the seal of SGM hospital along with one sample seal and same State Vs. Ami Chand etc., FIR No. 138/08, PS Kanjhawla Page 27 of 62 were taken in police possession vide seizure memo Ex.PW3/A and the same were deposited in the malkhana vide DD No. 27B since by that time the FIR was not registered because the prosecutrix had stated that she would give her statement after the arrival of her husband who had gone out of Delhi. He has further deposed that on 20.09.2008 the prosecutrix arrived at the police station along with her husband Manoj and he recorded her statement/complaint Ex.PW1/A and prepared rukka Ex.PW11/A and thereafter he handed over the rukka to the duty officer at 9:55 AM. According to him, thereafter he along with complainant and her husband reached at main bus stand Kanjhawala Kutubgarh road and there he prepared site plan at the instance of complainant Ex.PW11/B. He has further deposed meanwhile Ct. Joginder also reached there and handed over copy of FIR and original rukka to him and he searched for the accused and recorded statement of witnesses. According to him on 02.10.2008 the investigations of the present case was marked to W/ASI Rani Jassal and on that day he alongwith Rani Jassal, complainant prosecutrix , HC Om Parkash and Ct. Satish reached at the house of accused Ami Chand situated at village Harhipatti Distt. Hodal and from there accused the Ami Chand (correctly identified by the witness) was arrested and his personal search was conducted vide memos Ex.PW1/B and Ex.PW5/A. He has further deposed in this regard that they also reached at PS Hodal and accused produced two State Vs. Ami Chand etc., FIR No. 138/08, PS Kanjhawla Page 28 of 62 photographs which were taken in police possession vide seizure memo Ex.PW10/A and thereafter they all came back to Delhi and IO/WSI Rani Jassal along with Ct. Satish went to SGM hospital for medical examination of accused thereafter W/ASI Rani Jassal recorded his statement. He has further deposed that on 21.11.2008 he got the exhibits of the present case, sample seal and FSL form handed over to Ct. Jogender from MHC(M)/HC Surender vide RC NO. 78/21/08 and on the same day Ct. Jogender left Delhi for Calcutta for depositing the same at CFSL Kolkatta. He has also deposed on that day he recorded the statement of HC Surender but he does not recorded statement of Ct. Jogender.
During his cross examination by Ld. Defence counsel witness has deposed that W/ASI Rani Jassal recorded disclosure statement of accused in his presence at the place of arrest on 02.10.2008 and he had signed the said disclosure statement. He has further deposed that only the investigation officer Rani Jassal went inside the PS Hodal while they were sitting in their vehicle outside the PS Hodal and it was private Toyota Qualis and the registration number of the same he does not remember. According to him he cannot tell the distance from Delhi to Hodal and states that Hodal is a small town not a district but he cannot tell the directions of village Garhipatti from Hodal. He has further deposed they left for Hodal at about 4 PM on 02.10.2008 and they returned back at about 11 PM on State Vs. Ami Chand etc., FIR No. 138/08, PS Kanjhawla Page 29 of 62 the same day. According to him he had prepared the site plan of the place of occurrence in this case and he had not shown the position of bus stand in his site plan. He has further deposed on 18.09.08 complainant verbally told him the incident but refused to gave her statement in writing because her husband was not there and he had not recorded in writing what she verbally told him. According to him he had only recorded the factum of her refusal on her statement on that day but no date is there on her said statement and he had recorded the supplementary statement of prosecutrix but the date he does not remember. He has further deposed he had seen the statement of prosecutrix dated 21.09.2008 and the same was recorded by him correctly on the basis of the facts disclosed to him and he had recorded the statement of Manoj on 20.09.2008. Witness has denied the suggestion that he had deposed falsely or that he had not investigated the case fairly or that accused was not arrested in his presence.
During his deposition after filing of supplementary charge sheet witness has adopted his earlier examination and has stated that he did not participate in the investigations at any point of time regarding investigation of accused Sushil.
In his cross examination by Ld. Defence counsel witness has deposed that he had went to Hodal for the first time on 02.10.2008 and reached there at about 4 PM and hired a Toyota State Vs. Ami Chand etc., FIR No. 138/08, PS Kanjhawla Page 30 of 62 Qualis taxi, the fare of which was paid from the malkhana which was approximately Rs.1100/ to Rs.1200/ and the taxi driver does not gave them any receipt of the fare and he does not make any entry in the record about the fare of the taxi. Witness has denied the suggestion that he had never gone to Hodal and that is why there is no receipt/entry of the fare of taxi. Witness has further denied the suggestion that the prosecutrix came to him on 15.09.2008 and not on 18.09.2008 or that the husband of prosecutrix also came with her on 15.09.2008. He is further unable to tell as to what the prosecutrix was saying correct or incorrect when she stated that she came in the police station on 15.09.2008 along with her husband and gave her statement on the same day and has voluntarily added that the prosecutrix only gave her statement on 20.09.2008. According to him, he had not seized any mobile from the prosecutrix or her husband and states that he is not aware if the husband of the prosecutrix was having any mobile number 9654107980. He has further deposed prosecutrix came to the police station on 18.09.2008 at about 10:30 AM and on 20.09.2008 at about 9 AM but he is not aware to whom the prosecutrix first met in the police station. Witness has denied the suggestion that he did not go to the house of the prosecutrix and has voluntarily added that he had gone to her house during the investigation and also at the time of the search of the accused Sushil. He has further deposed he had also gone to the State Vs. Ami Chand etc., FIR No. 138/08, PS Kanjhawla Page 31 of 62 house of accused Sushil where he found his brothers but he cannot tell the names of the brothers of Sushil whom he had met at his house. According to him, he did not record their statements and has added that he had also met his wife and he also does not recorded her statement and he had mentioned this fact in the case diaries regarding the wife of Sushil having met him when he had gone to his house but not the fact regarding his brothers having met him. Witness has denied the suggestion that he did not meet his wife and brothers or that he did not meet his wife and brothers or that brothers of accused Sushil were not living with him. He has further stated that he did not ignore about the phone number of accused Sushil from his wife and brothers to search him and also did not inquire about the house of in laws of the accused Sushil, from his wife and brothers or any other neighbours. According to him he went to Murthal where brotherin law (Sarhoo) of accused Sushil was living but he did not meet him and also does not recollect his name but states that he had seen one person aged about 3035 years who told him that one person in relation of accused Sushil was living there but he does not make any entry in the record about the person whom he had met at Murthal. He has further deposed the very first statement of the prosecutrix on 20.09.2008 was taken by him. Witness has denied the suggestion that he did not prepare any site plan on 20.09.2008 at the spot and it was prepared later on by him of his own or that he did not go anywhere in State Vs. Ami Chand etc., FIR No. 138/08, PS Kanjhawla Page 32 of 62 search of accused Sushil. He has further deposed there were four police persons including WSI Rani Jaissal, HC OM Parkash, Ct. Satish and himself went to Hodal along with prosecutrix. Witness has denied the suggestion that prosecutrix did not go to Hodal after 15.09.2008 and has voluntarily added that she had accompanied them on 02.10.2008. Witness has further denied the suggestion that prosecutrix did not meet them after 15.09.2008 or that they had not gone to the village of accused Sushil and also where the prosecutrix was living( in the same village of Sushil) on 2.10.2008.
PW13 HC Vijay Singh has deposed that on 28.06.2010 he was working as MHC(M) at PS Kanjhawala and on that day SI Puran Mal had deposited one sealed parcel containing gauze piece and vial and sample seal with the seal of SD. Thereafter he received the same vide Entry no.1608 of Register no.19. Copy of entry is Ex.PW13/A. Witness has further deposed that on 06.09.2010 he sent the Exhibits to CFSL, Kolkata vide RC No.74/21/10 through Ct. Pavan Kumar. The copy of RC is Ex.PW13/B (original seen and returned).
PW14 HC Surender Singh has deposed that on 18.09.2008 he was working as MHC(M) at PS Kanjhawala and on that day ASI Jor Singh had deposited two parcels duly sealed with the seal of SGMH, Govt. of NCT, Delhi containing exhibits and clothes of the prosecutrix which he received vide Entry No. 1608 of State Vs. Ami Chand etc., FIR No. 138/08, PS Kanjhawla Page 33 of 62 Register No. 19. The copy of entry is Ex.PW14/A running into two pages. He has further deposed that on 02.10.2008 W/ASI Rani Jassal had deposited exhibits of accused Ami Chand and sample seals along with blood sample of accused Ami Chand and he received the same vide Entry no.1613 of Register no.19. The copy of entry is Ex.PW14/B. According to him on 21.11.2008 he had sent the exhibits to CFSL, Kolkata vide RC no.78/21/08 through Ct. Joginder. Which copy of RC is Ex.PW14/D. In his cross examination by Ld. Defence counsels witness has deposed that ASI Jor Singh had deposited the exhibits of prosecutrix in the evening hours but he does not remember the exact time and he also does not remember the time when ASI Rani Jassal had deposited exhibits of accused Ami Chand but it was in the day time.
PW15 Ct. Pawan had deposed that on 06.09.2010 he was posted at PS Kanjhawala and on that day HC Vijay Singh the then MHC(M) handed over exhibits of the present case to him thereafter he took the same to CFSL, Kolkata and got deposited the same in the office of CFSL, Koltaka on 08.09.2010 vide RC no. 74/21/2010. According to him no tampering was done during the period the aforesaid exhibits remained in his possession and his statement was recorded on 12.09.2010 in the police station by IO SI Puran Mal. During his cross examination by Ld. Defence counsels witness has State Vs. Ami Chand etc., FIR No. 138/08, PS Kanjhawla Page 34 of 62 deined the suggestion that he had tampered the abovesaid exhibits with the connivance of the complainant or that he was deposing falsely.
PW16 HC Shiv Kumar has deposed that on 08.01.2009 he was posted at PS Kanjhawala and on that day he took the process under Section 82 Cr.P.C. against the accused Sushil. According to him he went to execute the same at his given address i.e Village and Post Office Jonti, Delhi where he had made inquiries about the accused Sushil in the village but he could not be traced on which he had pasted a copy of the process on the house of the accused Sushil and another copy of the same was pasted on the notice board of the court and his report to this effect is Ex.PW16/A. He has further deposed that on 10.01.2009 he took the process under Section 82 Cr.P.C. against the accused Rajender @ Foji S/o Sh. Buddhi and he went to execute the same at his given address i.e Village Garhi Patti, PS Hodal, Distt Palwal (Haryana) where he had made inquiries about the accused Rajender @ Foji in the village but he could not be traced the he had pasted a copy of the process on the house of the accused Rajender @ Foji and another copy of the same was pasted on the notice board of the court. He has further deposed that his report to this effect is Ex.PW16/B. During his cross examination by Ld. Defence counsels witness has denied the suggestion that he does not gone the village of State Vs. Ami Chand etc., FIR No. 138/08, PS Kanjhawla Page 35 of 62 Sushil and Rajender to execute the process under Section 82 Cr.P.C or that he had prepared his report Ex.PW16/A and Ex.PW16/B while sitting in the PS or that the wives and children of the accused persons were present at the house and he had never went to them to take their statement as all the documents were prepared while sitting at PS or that he had not taken the statement of father of accused Sushil. According to him he does not know if the accused Rajender Singh was working in territorial army and at the time of the alleged incident he was on duty. Witness has further denied the suggestion that he did not take proper measures to trace the accused Sushil and Rajender and the accused Sushil was got declared PO deliberately.
PW17 HC Raj Kumar has deposed that on 18.03.2009 he was posted at PS Kanjhawala and on that day he went to execute process under Section 83 Cr.P.C against the accused Sushil S/o Sh. Rai Singh at his given address i.e. Village Jonti, Delhi where his father met him who has stated that he has four sons including the accused Sushil and he has given the share of all sons to them but the property was still joint and was in his name. According to him he had recorded the statement of Sh. Rai Singh Pandit father of accused Sushil which is Ex.PW17/A and he had recorded statement of Sh. Sanjay Singh S/o Sh. Balbir Singh and Sanjay Singh S/o Sh.Daya Kishan vide Ex.PW17/B and Ex.PW17/C respectively and he had submitted his detailed report which was previously Ex.CW1/B now State Vs. Ami Chand etc., FIR No. 138/08, PS Kanjhawla Page 36 of 62 Ex.PW17/D. He has further deposed that on 20.03.2009 he went to execute the process under Section 83 Cr.P.C. against the accused Rajender @ Foji S/o Buddhi at his given address i.e. Village Garhi Patti, Distt Palwal (Haryana) where he had made inquiries in the village. According to him father of accused Rajender namely Sh. Buddhi met him and has stated that he has not given the share of his property to his sons and the whole property is in his name and there is no movable or immovable property in the name of accused Rajender @ Foji. He has further deposed that he had recorded the statements of Sh. Buddhi which is previously Ex.CW1/C , the statement of Sh. Sugreev vide Ex.PW17/E , the statement of Rajbir Ex.PW17/F and his detailed report which is previously Ex.CW1/B is now Ex.PW17/G. During his cross examination by Ld. Defence counsels witness has admitted that it is not mentioned in his report Ex.PW17/D that accused persons were available in their village or not. He has further deposed that he made inquiries from their father regarding the whereabouts of their sons to which they have stated that their sons are not available. Witness has further admitted that this fact is not mentioned either in their statements or his report Ex.PW17/D or Ex.PW17/G. Witness has denied the suggestion that he does not make proper efforts to take proper measures to trace the accused persons or that the entire reports were prepared while sitting State Vs. Ami Chand etc., FIR No. 138/08, PS Kanjhawla Page 37 of 62 in the police station or that accused persons have been wrongly got declared Proclaimed Offender on the wrong report.
PW18 Ct. Dinesh Kumar has deposed that on 28.06.2010 he was posted at PS Kanjhawala and on that day he along with SI Puran Mal had come to court no.212, Rohini where accused Sushil had surrendered and after taking permission from the Hon'ble court he was arrested in this case formally vide memo Ex.PW18/A and personally searched vide memo Ex.PW18/B. He has further deposed that the information regarding his arrest was given to his wife Poonam, thereafter they took the accused Sushil to Ambedkar Hospital for his medical examination where his medical examination was got done vide MLC already Ex.PW12/A and the doctor handed over blood sample in gauze piece and vial in a box duly sealed with the seal of SD to the IO which he seized vide memo Ex.PW18/C thereafter his statement was recorded by the IO. Witness has also correctly identified the accused who was present in the court.
In his cross examination by Ld. Defence counsel witness has deposed that he does not remember the time of recording of his statement but it was taken in the evening, he also does not remember the place where his statement was recorded by the SI Puran Mal Singh (IO) and he also does not remember whether his statement was taken in the court or at Sanjay Gandhi Hospital or Police Station or anywhere else. According to him the IO informed the wife of the State Vs. Ami Chand etc., FIR No. 138/08, PS Kanjhawla Page 38 of 62 accused on phone but he does not know whether the IO noted down the said phone number on which he informed the wife of the accused about the arrest of the accused and he did not hear the talk of the IO with the wife of the accused as he was standing at some distance. He has further deposed that he was not told by the IO or anybody else to whom the IO had spoken on the phone. He has stated that the accused was taken to Sanjay Gandhi Hospital at Mangol Pur, Delhi, and not to any other hospital. Witness has denied the suggestion that the accused Sushil was taken to Ambedkar Hospital and not to Sanjay Gandhi Hospital or that he did not join the IO during his arrest or while taking him to the hospital on 28.06.2010 or that his statement was recorded at Police station. He has further deposed that he does not remember at what time the accused was arrested but states that the arrest memo and personal search memo were prepared in his presence in the court. He also does not recollect the time of preparing the above said documents. Witness has admitted that the name, address and phone number of the person to whom the information of arrest of accused Sushil was given is not mentioned in the relevant column of arrest memo Ex.PW18/A. Witness has denied the suggestion that the name of the wife of accused Sushil is Ram Bhateri and not Poonam or that he was deposing falsely.
On reexamination by Ld Addl PP on the aspect of the hospital where the accused was taken for medical examination State Vs. Ami Chand etc., FIR No. 138/08, PS Kanjhawla Page 39 of 62 witness has admitted that Dr. Baba Saheb Ambedkar Hospital is situated in Rohini and Sanjay Gandhi Hospital is situated in Mangol Puri. Initially the witness denied the suggestion that accused Sushil was taken to Dr. Baba Saheb Ambedkar Hospital, Rohini, Delhi not to Sanjay Gandhi Hospital but later admitted the same after seeing the MLC showing his name and number was mentioned on the MLC Ex.PW12/A. He has also admitted that doctor concerned had handed over the exhibits of accused Sushil to the IO in his presence which he took into possession vide seizure memo Ex.PW18/C. In his recross examination by Ld. Defence counsels, the witness has initially stated that he did not recollect whether his name was mentioned in the MLC Ex.PW12/A but after seeing the said MLC he remembered that his name was mentioned in the said MLC.
PW19 Insp. Harish Chander has deposed that on 14.10.2008 he was posted at PS Kanjhawala and on that day further investigations of this case was handed over to him and he had received the case file from MHC(R) and perused the same. According to him he made efforts to trace Susheel and Rajender and he filed the main charge sheet against accused Ami Chand who had already been arrested by ASI Rani Jassal. He has further deposed that he obtained the process U/S 82/83 Cr. P. C. against remaining accused persons namely Rajender and Susheel and he handed over the process to HC Umed Singh to execute the same who got the same State Vs. Ami Chand etc., FIR No. 138/08, PS Kanjhawla Page 40 of 62 executed through HC Raj Kumar and HC Shiv Kumar and both the accused persons Rajender and Susheel were got declared PO and the remaining investigations were done by SI Puran Mal.
PW20 Suresh Babu has deposed that he had about 21 years working experience in the field of Biology and serology examination. According to him three sealed parcels in connection case FIR No. 138/2008, PS Kanjhawla were deposited in the laboratory by Delhi Police messenger on dated 24.11.2008 for examination and all parcels were intact and tallied with the specimen seal. He has further deposed that all parcels were opened and examined and their examination description and results have been mentioned in his report no. CFSL (K)/ EE/2008(DEL733 on dated 02.07.2009) which is Ex. PW 20/A. PW21 Sh. Pardeep Kumar Mishra has deposed that he had about 16 years working experience in the field of Biology and serology examination. According to him one sealed parcels in connection case FIR No. 138/2008, PS Kanjhawla were received in the laboratory by Delhi Police through messenger on dated 08.09.2010 for examination and the parcel was intact and tallied with the specimen seal. He has further deposed that the said parcel was opened and examined and the examination result and description have been mentioned in his report no. CFSL (K)/ EE/2010(DEL577 on dated 27.01.2011) which is Ex.PW21/A. State Vs. Ami Chand etc., FIR No. 138/08, PS Kanjhawla Page 41 of 62 PW22 SI Puran Mal has deposed that the accused Sushil and Rajender were already declared PO in this case on 16.07.2009 and on 28.06.2010 he was posted at PS Kanjhawala and on that day the accused Sushil had surrendered before Sh. Ajay Singh Sekhawat Ld. MM Rohini. According to him he attended the court and after taking permission from the court o his request which is Ex.PW 22/A he made inquiries from the accused Sushil and arrested him vide memo Ex.PW18/A and personally searched vide memo Ex.PW18/B thereafter the accused Sushil was taken to BSA hospital through Ct. Dinesh Kumar and he also accompanied them. He has further deposed that the medical examination of accused Sushil was got done vide MLC Ex.PW12/A and the doctor concerned had taken blood sample of the accused Sushil and same was sealed with the seal of SD and handed over the same to him with sample seal thereafter he took the same into possession vide memo Ex.PW18/C. According to him he had produced the accused before Ld. MM and caused him to be sent to judicial custody.
Witness has further deposed that on 06.09.2010 he send the exhibits to FSL Kolkatta through Ct. Pawan Kumar vide RC NO. 74/21/10 and he recorded the statements of witnesses and prepared supplementary challan against accused Sushil and the coaccused Rajender @ Fauzi who could not be apprehended till then and was declared PO on 16.07.2009.
State Vs. Ami Chand etc., FIR No. 138/08, PS Kanjhawla Page 42 of 62
In his cross examination by Ld. Defence counsel witness has deposed that he had recorded statement of prosecutrix prosecutrix after arrest of accused Sushil Kumar but he does not remember the date and has voluntarily added that he took the said statement after second remand of accused Sushil. Witness has further deposed that he never visited in the village Garipati, district Palwal which is mentioned in the statement of prosecutrix taken by him and he only recorded statement of prosecutrix. According to him except statement of prosecutrix he did not record the statement of any other public witness. Witness has admitted that prosecutrix told in her statement that she was working as a sweeper in Health Star Hospital, Jonti, Delhi. Witness has further deposed that he inquired from the hospital Heal Star whether the prosecutrix was working there or not but he does not verify the period of her working in the hospital. Witness has admitted that he never visited the house of Rajender to inquire the fact whether the prosecutrix was taken to his house or not or that he does not inquire about the statement of prosecutrix dated 12.07.2010 when she stated that she was kept in the house of Ami Chand for 1520 days. Witness has further deposed that he inquired from the husband of prosecutrix about the fact which she stated in her statement that on asking of her husband "where were you for 1510 days", she answered that "she had gone to her sister" but he does not record the statement of her husband. State Vs. Ami Chand etc., FIR No. 138/08, PS Kanjhawla Page 43 of 62 Witness has admitted that he does not make any further inquiry in the case and only arrested the accused and got his medical conducted. STATEMENT OF ACCUSED & DEFENCE EVIDENCE:
After completing the prosecution evidence, statements of accused were recorded under Section 313 Code of Criminal Procedure in which all the incriminating evidence / material was put to them which they have denied. However, the accused have not examined any witness in defence.
The accused Ami Chand has stated that he is innocent and has been falsely implicated. Accused Sushil has stated that he is innocent and has been falsely implicated by the prosecutrix as he had introduced her as already married lady before Ami Chand. He has stated that police never informed him or his wife about the case and when he went to police station to know about the license of gun then he came to know about the same and thereafter he surrendered before court. According to him, when the coaccused Ami Chand and Rajender came to his village searching for the prosecutrix, they told him that prosecutrix had eloped after marrying Ami Chand then he told them that she was already married to one Manoj and living here so how can she marry coaccused Ami Chand and on this resulted in enmity with the prosecutrix due to which reason she implicated him in this false case.
State Vs. Ami Chand etc., FIR No. 138/08, PS Kanjhawla Page 44 of 62 FINDINGS:
I have heard the arguments advanced before me by the Ld. Addl. PP for the State and the Ld. Defence Counsel appearing on behalf of the accused. I have also considered the testimonies of the witnesses examined by the prosecution.
Identity of the accused:
In so far as the identity of the accused is concerned, both Ami Chand and Shushil have been duly named and also identified by the prosecutrix in the court. Therefore, under these circumstances, I hold that the identity of both the accused stand established. Medical Evidence:
In so far as the medical evidence is concerned, it does not support the prosecution case in as much as the medical examination of the prosecutrix who was a married woman with three children was conducted much later. It is evident from the testimony of PW6 Dr. Sangeeta Kumari that there were no signs of any internal or external injury seen which is despite the fact that the prosecutrix in her testimony has testified that she had been badly beaten by large number of persons and the marks of injury had been shown by her to the police and also to the doctors. The MLC does not reflect any such information being given to the doctor nor any injuries are evident on her body. This falsifies the allegations made by the State Vs. Ami Chand etc., FIR No. 138/08, PS Kanjhawla Page 45 of 62 prosecutrix to that extent.
Forensic Evidence:
The CFSL report Ex.PW21/A has been duly proved by PW21 Pradeep Kumar Mishra, Junior Scientific Officer, CFSL, Calcutta. I have perused the report which shows that in the vaginal swab and the salwar which are Ex.P1 and Ex.P2, human semen could be detected but the blood group could not be detected from the same. Therefore, it is evident that human semen found on the clothes prosecutrix has not been conclusively linked to the accused Ami Chand and Sushil.
Status of the prosecutrix :
According to the prosecutrix 'G' (PW1) she is married to PW8 Manoj. It is borne out from the record that the prosecutrix claims that she was married to Manoj 15 years back and now it is for the first time that it has been disclosed that prior to the same she was already married and had not sought a divorce from her first husband who is still alive and is residing separately. It is also borne out from the record that at that time she was carrying a child which child was born after her marriage with Manoj. Further, in so far as the PW8 Manoj is concerned he has also in his testimony proved that the prosecutrix is his second wife whom he had married when the State Vs. Ami Chand etc., FIR No. 138/08, PS Kanjhawla Page 46 of 62 prosecutrix was carrying a child (which child was born after their marriage) and at that time (15 years ago) he was already married to one Kusum and as on date both his first wife and the prosecutrix are residing with him.
Further, it is evident from the deposition of the prosecutrix that she was also married to Ami Chand though according to her she was forcibly married Ami Chand. She has denied the fact that she had suppressed this fact of her being already married to Manoj from Ami Chand and has also denied that it is only when the Ami Chand came to know about her earlier marriage with Manoj that an altercation took place between her and Ami Chand after which she ran away from the house of Ami Chand along with cash and jewellery and when Ami Chand asked her to return the same, she filed the present case.
I have gone through the marriage photographs Ex.10/D1 and Ex.10/D2 and it is evident that the prosecutrix is a mature woman more than 26 years of age at the time of the alleged marriage with Ami Chand, she was a mother of three children. Here, I may observe that through the prosecutrix claims that she is 26 years but as observed by this court, she appears to be more than 26 years of age since according to her own version even her eldest son is married. The marriage photographs Ex.10/D1 and Ex.10/D2 do not even remotely show that the prosecutrix was under any stress or State Vs. Ami Chand etc., FIR No. 138/08, PS Kanjhawla Page 47 of 62 pressure of any kind and her alleged marriage with Ami Chand being consensual, cannot be ruled out.
Allegations made by the prosecutrix :
The case of the prosecutrix is that she was working as maid in the house of the accused Sushil and became friendly to his wife namely Poonam. According to her, prior to the the day of Raksha Bandhan in the same year, Poonam on the pretext taking her to her parents place, took her to Hodal where Poonam introduced her to Ami Chand and told her to marry him to which she did not agree but she was married to Ami Chand forcibly and was kept in a locked house for 19 days and one day she fled away from there on the pretext of going to attend a natural call. According to her, for few days she remained confined in her house in Delhi and on 14.08.2008 when her husband gave her money to bring ration and she went to Kanjhawala by bus and when she got down at Kanjhawala bus stand and was proceeding towards ration shop, the accused Sushil along with two three persons came there and Sushil caught hold of her and pulled her inside the car and made her drink some stupefying substance as a result of which she became unconscious and when she regained her consciousness she found herself in the same house at Hodal where she was earlier kept by Ami Chand and in the same night, she was raped by Sushil, Rajinder, Satto, Banso, Khemchand State Vs. Ami Chand etc., FIR No. 138/08, PS Kanjhawla Page 48 of 62 and Ami Chand. According to her, one lady namely Dulari, Bhabi of Ami Chand was also present in the said house when she was being raped by these persons but in the morning somehow she managed to slip from the house and met a person on a motorcycle who told her that police was coming and that person brought her to Delhi at her house. This, I may observe, was the initial story put forward by the prosecutrix. Later now she has improved upon her version and stated that the person on the motorcycle had left her at Hodal Railway Station from where she herself came back to Delhi.
I may observe that in her initial statement under Section 161 Cr. PC recorded by the police, the prosecutrix told the IO that the person on motorcycle took her to his house and thereafter on 17.9.08 evening she came to her house at Dehi in the bus. The relevant portion of her statement under Section 161 Cr.PC which is Ex.PW1/A reads as under:
"..... dinank 14.9.08 ko mai apne kamre se Kanjhawala ration khareedne gai thi, jo 12:00 baje din mai Kanjhawala bus stand ke paas maujud thi ki Sushil s/o Rai Sigh R/o VPO Jonti Delhi wa uska dost Rajender a ek aadmi aur tha jo m/car chala raha tha mere paas aaye aur m/car ka darwaja khola wa Shushil ne ekdaum State Vs. Ami Chand etc., FIR No. 138/08, PS Kanjhawla Page 49 of 62 mera haath pakar kar gaardi ke ander kheench liya wa gaadi ke ander mujhe daba liya wa gaadi ko chala diay jo Sushil ne mujhe paani jabardasi pilaya jo mai behosh ho gai jo dinank 15.9.08 raat ko 1½ baje mujhe hosh aya toh mai ek kamre mai mili jo wahan per Sushil wa Rajender bhi wahan maujud thye jo Sushil ne mujhe dhamki di ki jaise hum kahenge vaise karna hai nahi toh tujhe yahin per khatm kar denge uske baad Sushil wa Rajender ne mere saath jabardasti galat kaam kiya, jo 15.9.08 ko din 10 baje mai kamre ke ander she bahar nikli aur wahan se bhagne ki koshish ki jo Ami Chand wa anya do vayktiyon ne mujhe rokni ki koshish ki jo mai chillane lagi toh wahan par kafi log jama ho gaye, jo usi dauran road se ek motorcycle wala ja raha tha, jo bheed ko dekh kar motorcycle sawar wahan ruk gaya, jo bheed ke ander se kisi ne kaha ki police aa gai jo wahan se sabhi bhag gaye, jo mai motorcycle sawar ke paas chali gai State Vs. Ami Chand etc., FIR No. 138/08, PS Kanjhawla Page 50 of 62 aur sari baat maine usko batlai jo usne kaha yeh Gadhi gaon hai, jo mujhe apni motorcycle par maitha kara apne ghar le gaye, jo mai dar ke maare 17.9.08 tak wahan rahi aur 17.9.08 ko dopeher ko bus mie baith kar wahan se apne ghar ke liye nikli, jo saam ko mai aupne ghar par pahunchi ......."
Now coming to the testimony of the prosecutrix and her deposition before the Court, the relevant portion of the same is a sunder :
"About 1 ½ years prior to the date of incident, I was working as maid in the house of Sushil. I was residing near the house of Sushil. Poonam wife of Sushil became friendly with me and started visiting my house. Prior to the day of Raksha Bandahn, in the same year in which the present incident took place, Poonam on the pretext taking me to her parents took me to some other place in Hodal. There Poonam introduced me to one Ami Chand State Vs. Ami Chand etc., FIR No. 138/08, PS Kanjhawla Page 51 of 62 and told me that I should marry Ami Chand. I did not agree but I was married to Ami Chand. I did not agree but I was married to Ami Chand forcibly. Ami Chand kept me in a locked house for 19 days. After 19 days, one day I fled away from there on the pretext of going to attend a natural call. From Hodal, I came back to Delhi and went to my house. For few days, I remained confined in my house in Delhi. On 14.8.2008, my husband gave me some money to bring ration. I went to Kanjhawala by bus. When I got down at Kanjhawla bus stand and was proceeding towards ration shop when Sushil caught hold of me and pulled me in a car. One person namely Rajinder was also sitting inside the car. The third person whose name I do not know drove away the car.
Sushil made me drink some stupefying substance as a result of which I became unconscious. Around 11.30 am, I regained my consciousness and found myself in the State Vs. Ami Chand etc., FIR No. 138/08, PS Kanjhawla Page 52 of 62 same house at Hodal where I was earlier kept by Ami Chand. In the same night, I was raped by Sushil, Rajender, Satto, Banso, Khemchand and Ami Chand. One lady namely Dulari Bhabhi of Ami Chand was also present in the said house when I was raped by these persons. Somehow I managed to slip from the house in the morning and met a person on a motorcycle who told me that police is coming. I sat on his motorcycle and he brought me to Delhi at my house.
At this stage, witness identified accused Ami Chand present in the court.
Again said that motorcycle person let me at Hodal railway station from there I came to Delhi."
It is evident that there are material contradictions and improvements in the testimonies of the prosecutrix made by the prosecutrix in her testimony rendering her statement improbable the benefit of which has to be given to the accused. Firstly I may observe that the case of the prosecutrix is not restricted to only one State Vs. Ami Chand etc., FIR No. 138/08, PS Kanjhawla Page 53 of 62 instance but according to her prior to the present incident when she was forcibly picked up by Sushil and put in a car, she was earlier lured away by Poonam the wife of Sushil and forcibly got married to Ami Chand and she stayed in the house of Ami Chand for almost 19 days. Here, I may observe that no complaint to the police or any other authority has been made by the prosecutrix against the accused Ami Chand and his family members and now it is for the first time that she has come up with this story which does not inspire confidence of the Court. It is strange that the prosecutrix who has been staying with Manoj (PW8) as his second wife for almost 15 years in his house, was missing for 19 days but neither her children nor Manoj made any complaint to the police or made any efforts to trace her. Rather, on the contrary when she came back she simply told Manoj (PW8) that she had gone to her sister's house. The story so created by her appears to be highly improbable and unnatural since any other woman under similar circumstances would have immediately brought this incident to the notice of her family members and the police which the prosecutrix did not do who rather chose to play down the entire incident by claiming that she had gone to visit her sister.
Secondly the prosecutrix also claims that during the period she was held captive at the house of Ami Chand she had been subjected to extreme brutality and beaten by his family members and State Vs. Ami Chand etc., FIR No. 138/08, PS Kanjhawla Page 54 of 62 raped by as many as five persons namely Sushil, Rajender, Satto, Banso, Khem Chand and Ami Chand which fact is a total improvement over her earlier statement made to the police which is Ex.PW1/A and it is for the first time that she has come up with this story in the Court.
Thirdly the prosecutrix further claims that she had shown the injury marks to the doctor and also to the police which is incorrect. Neither the MLC of the prosecutrix reflect any such injury marks nor the doctor and police officers who had examined her, have corroborated her version to this extent. Had there been any injury marks, I am sure, the same would have been found mention in the MLC or in the testimonies of the Investigating Officer which is not the case.
Fourthly the version given by the prosecutrix as to how she escaped from the clutches of accused Ami Chand and reached back Delhi, is vague and inconsistent and also does not appear probable. Initially in her statement to the police she claimed that she had raised a hue and cry when a large number of neighbours and villagers gathered and one person on a motorcycle came there and she went with him and stayed at his house and next day she took a train and came back to Delhi. In her testimony before the Court she initially stated that the person on the motorcycle left her at Delhi but later stated that he left her at the railway station at Hodal and she State Vs. Ami Chand etc., FIR No. 138/08, PS Kanjhawla Page 55 of 62 came to Delhi after purchasing the ticket from the amount borrowed from the said person. Who was this person on the motorcycle, the prosecutrix is unable to tell. It is strange that the prosecutrix initially told the Investigating Officer that she had stayed at the house of this person on the motorcycle for one day but later in the Court she improved her version and stated that he left her at the railway station. It is impossible that the prosecutrix a mature woman who is a mother of three, would have forgotten how she ultimately landed in Delhi and reached her house. On the face of it the entire story put forward by the prosecutrix is a cock and bull story which does not inspire confidence of the Court.
Fifthly the photographs of marriage between the prosecutrix and the accused Ami Chand which have been placed on record do not reflect any kind of fear or pressure on the face of the prosecutrix. Rather, her posture is absolutely composed and reflect her voluntariness and consent and hence the version given by the defence of the prosecutrix having married the accused Ami Chand by suppressing the fact of her earlier marriages and later implicating the accused and their families cannot be ruled out being equally probable.
Seventhly it is apparent from the evidence on record that the place from where the prosecutrix has been allegedly held kept is a residential house in the village where the family of accused Ami State Vs. Ami Chand etc., FIR No. 138/08, PS Kanjhawla Page 56 of 62 Chand resides. There are large number of public persons reside in the vicinity. According to the prosecutrix, when she raised a hue and cry on 15.9.2008 large number of persons from the neighbourhood had gathered and one person on motorcycle took her with him. Therefore, earlier to that in case if the prosecutrix had raised a hue and cry as claimed by her, some of the neighbours would certainly have heard the cries and would have came to her rescue as they had done on 15.9.2008 which did not happen. None of these neighbours who collected at the spot have been cited as a witness. They were all material witnesses and an adverse inference is drawn for the same.
Seventhly I may observe that the prosecutrix in her testimony has not even spared the bhabhi of Ami Chand namely Dulari and has also named her as one of the person present at the time when she was being raped by other persons, a story which has now been put by her before the court for the first time. Further, the accused Sushil is the person who is in Territorial Army. He is known to the accused Ami Chand and naturally having exposed the marital status of the prosecutrix to Ami Chand after she got married to him (Ami Chand) the possibility of the prosecutrix having falsely implicated Sushil and his wife cannot be ruled out. Also, the second version given by the defence that after marrying Ami Chand by suppressing earlier two marriages and when Ami Chand knew about her earlier marriages, there was an altercation between them and the State Vs. Ami Chand etc., FIR No. 138/08, PS Kanjhawla Page 57 of 62 prosecutrix decamped from the house of Ami Chand with the jewellery and cash and the present case is the counter blast, is equally probable.
Eighthly in so far as the allegations of being administered stupefying substance by accused Sushil to the prosecutrix is only borne out from the oral testimony of the prosecutrix which does not find any corroboration or support from medical evidence or other circumstantial evidence placed on record.
Ninethly I may observe that the prosecutrix is a mature woman having three children the eldest of whom is already married. She had married on earlier two occasions and worldly wise and mature and understand the various consequences. To say that she did not make any complaint regarding the earlier incident when she was held kept in the house of Ami Chand, out of fear does not appeal to the mind more so in view of the fact that she had even suppressed this fact from Manoj (PW8) her second husband by stating that she was at the house of her sister during this period.
Lastly no independent corroboration is forthcoming and the sequence of events as put forward and the testimony of prosecutrix, does not stand convincing established. Rather, the inconsistent stand taken by the prosecutrix in her testimonies, does not render the story put forwarded by her as probable. It is further evident that as per the testimony of the prosecutrix when the person State Vs. Ami Chand etc., FIR No. 138/08, PS Kanjhawla Page 58 of 62 on the motorcycle left her at the railway station, she took a train and thereafter on a public transport / bus she returned to her village at Delhi, but nowhere does she informed the police or raised an alarm. Where from she got the money to purchase the tickets, has not been satisfactorily explained by her. She states that she begged for money for returning to Delhi but this does not appear probable because had that been so, some local authorities including the Railway Police would have been apprised of the condition of the prosecutrix. Any mature person in the similar situation would first seek help by giving information to any government authority such as police station or TT in the train and the prosecutrix had sufficient opportunity to do both at Hodal and in Delhi, which she did not do.
This being the background, I hereby hold that the behaviour of the prosecutrix is totally unnatural and the sequence of events as sought to be made out appears to be improbable more so as the medical evidence does not support her version. Simply because the FSL Report shows positive results for semen cannot be a ground to believe her version since it is writ large that before she came back to Delhi and was medically examined she stayed at the house of the person on motorcycle whose name she does not disclose and who she states had left her at the railway station. Further, considering the delay caused between the alleged act and also in view of the fact that after returning to Delhi the prosecutrix had stayed with Manoj (PW8) State Vs. Ami Chand etc., FIR No. 138/08, PS Kanjhawla Page 59 of 62 the possibility of the semen stains belonging to either the person on the motorcycle or Manoj cannot be ruled out more so as the FSL report does not conclusively connect the semen so found on the clothes of the prosecutrix with the blood group of either of the accused in the Court. Benefit of the same has to be given to the accused.
FINAL CONCLUSION:
In the case of Sharad Birdhichand Sarda Vs. State of Maharastra, AIR 1984 SC 1622, the Apex Court has laid down the tests which are prerequisites before conviction should be recorded, which are as under:
1. The circumstances from which the conclusion of guilt is to be drawn should be fully established.
The circumstances concerned 'must or should' and not 'may be' established;
2. The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
3. The circumstances should be of conclusive nature and tendency;
4. They should exclude every possible hypothesis except the one to be proved; and
5. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human State Vs. Ami Chand etc., FIR No. 138/08, PS Kanjhawla Page 60 of 62 probability the act must have been done by the accused.
Applying the above principles of law to the facts of present case, I hereby hold that the prosecution has been able to establish the identity of both the accused; that the prosecutrix 'G' is a married woman and a mother of three who has been earlier staying with one Manoj for the last 15 years without obtaining a divorce from her first husband. It also stands established that Manoj is already having a living wife by the name of Kusum and he is maintaining both the prosecution and his wife Kusum. It also stands established that the accused Ami Chand had been married to the prosecutrix but it does not stand established that the said marriage between the prosecutrix and accused Ami Chand was on account of any pressure or force or that prosecutrix had been brutally assaulted and raped by Sushil, Rajinder, Satto, Banso, Khemchand and Ami Chand. It also stands established that the prosecutrix had been rescued by a person on motorcycle after which she reached her house by borrowing money from unknown persons.
I further hold that the circumstances reflected from the material on record do not stand conclusively established. The facts are also not consistent only with the hypothesis of the guilt of the accused. The chain of evidence is not so much complete so as not to State Vs. Ami Chand etc., FIR No. 138/08, PS Kanjhawla Page 61 of 62 leave any reasonable ground for the conclusion consistent with the innocence of the accused persons. The materials brought on record by the prosecution are insufficient to hold that each of the accused Ami Chand and Shushil were guilty beyond reasonable doubt. Further, each circumstance has not been proved beyond reasonable doubt. The prosecution has also not established a conclusive link connecting each individual circumstance with the other, and the accused namely Ami Chand and Shushil. Crucially, the materials and evident on the record do not bridge the gap between "may be true" and must be true" so essential for a court to cross, while finding the guilty of an accused, particularly in cases based on circumstances evidence.
Therefore, I hereby hold that the prosecution has not been able to prove and substantiate the allegations against the accused Ami Chand and Shushil beyond reasonable doubt and hence, benefit of doubt is being given to them who are acquitted of the charges under Section 328/365/376 (2) (g)/506 read with Section 34 Indian Penal Code.
File be consigned to Record Room to be taken up on arrest of the accused Rajender who is Proclaimed Offender.
Announced in the open court (Dr. KAMINI LAU)
Dated: 28.9.2011 ASJ (NW)II: ROHINI
State Vs. Ami Chand etc., FIR No. 138/08, PS Kanjhawla Page 62 of 62